Post on 05-Feb-2016
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Fair Housing, Zoning and Affirmatively Furthering Fair Housing: What is Required?
Fair Housing ProjectLegal Aid of North Carolina
Post Office Box 26087Raleigh, NC 276111-855-797-FAIR
North Carolina Human Relations Commission
1318 Mail Service Center Raleigh, NC 27609
(919) 807-44201-866-324-7474 (toll free)
http://www.doa.state.nc.us/hrc
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The work that provided the basis for this publication was supported by funding under a grant with the U.S. Department of Housing and Urban Development. The substance and finding of the work are dedicated to the public. The author and publisher are solely responsible for the accuracy of the statements and
interpretations contained in this publication. Such interpretations do not necessarily reflect the views of the
Federal Government.
The material in this presentation is for information and educational purposes only and does not constitute legal advice.
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Fair Housing Laws
Fair Housing Act 42 U.S.C. §3601, et seq.
Civil Rights Act of 1866 42 U.S.C. § 1981
Title VI of Civil Rights Act of 1964 42 U.S.C. §2000d, et seq.
Sec. 109, Housing & Comm. Dev. Act of 1974 42 U.S.C. §5309
Americans with Disabilities Act (ADA) 42 U.S.C. §1201, et seq.
Sec. 504, Rehabilitation Act of 1973 29 U.S.C. §794
North Carolina State Fair Housing Act N.C. Gen. Stat. §41A-1
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Fair Housing Act
FHA passed April 1968 Context
De jure racial discrimination in housing Housing segregation based on race Civil Rights Movement Kerner Commission (1968)
“our nation is moving toward two societies, one Black, one white – separate and unequal”
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FHA Goals
Non-discrimination based on 7 “protected classes” Race, color, religion, national origin (1968) Sex (1974) Disability, familial status (1988)
Ending segregation Originally focused on racial & national origin
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Affirmatively Furthering Fair Housing:HUD Obligations
Administer programs “in a manner affirmatively to further the policies” of the Fair Housing Act 42 U.S.C. §3608(e)(5)
Do “more than simply refrain from discriminating;” must also “assist in ending discrimination & segregation” NAACP v. Sec. of HUD, 817 F.2d 149 (1st Cir. 1987)
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Affirmatively Furthering Fair Housing:Grantee Obligations
CDBG grants “shall be made only if the grantee certifies” that “the grant will be conducted and administered in
conformity with” the FHA “the grantee will affirmatively further fair housing.”
42 U.S.C. §5304(b)(2)
Also applies to HOME, ESG, HOPWA, NSP funds Applies to PHAs Applies to subgrantees/subrecipients
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AFFH: What Has Been Required? No regulatory definition of AFFH
But rule has been proposed 78 Fed. Reg. 139 (7/19/13), pp. 43710-43743
Fair Housing Planning Guide Req’ts Analysis of Impediments to Fair Housing Choice
(AI) Take appropriate actions to overcome effects of
any impediments identified Maintain records reflecting analysis & actions
taken www.hud.gov/offices/fheo/images/fhpg.pdf
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AFFH: What Has Been Required?
HUD Fair Housing Planning Guide Affordable housing vs. fair housing activities Not enough to build or rehab low/mod housing Primarily symbolic activities not enough
E.g. FH poster contests
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ADC v. Westchester County:Plaintiff’s Allegations
County received > $52 million from 2000-06 County certified meeting AFFH obligations County did not meet AFFH
AI did not ID any impediments based on race, color, national origin
AI did not mention housing discrimination or segregation
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ADC v. Westchester:County’s Response
Race is not required to be considered Income is a better proxy than race for
determining needs Race is “not among the most challenging
impediments” in County
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ADC v. Westchester:Court Rulings
FHA goal = end discrimination & segregation FH Planning Guide is “persuasive” Must consider race in AI & AFFH AFFH is not “mere boilerplate formality” Must take “appropriate” actions & maintain records Westchester made > 1,000 “false or fraudulent”
certifications “Utterly failed” to meet obligations
Need to consider where affordable housing is placed
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ADC v. Westchester:Settlement Agreement
County to develop 750 affordable units 660 in predominantly white cities
<3% African American and <7% Latino County acknowledges it can sue cities who resist
Conduct new AI to comply w/ Planning Guide HUD Monitor to oversee compliance Return $30 million to HUD
$7.5 million to ADC Supply additional $30 million for integrative units Pay $2.5 million attorney’s fees & costs
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ADC v. Westchester:Implications for HUD Recipients
Review your AI Make sure up-to-date (last 5 yrs.) Addresses all protected classes, including race,
color & national origin Involve local community & groups
Address segregation in addition to discrimination
Hold sub-recipients accountable Cities, towns, etc., must also AFFH
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Examples of Local FH Activities
Update local FH laws w/ add’l protected classes e.g. affordable housing as protected class
Support accessibility & visitability Train City staff, officials, landlords & public in FH law Education & outreach to promote FH, knowledge of
LL/tenant laws & awareness of disparate impact of certain policies (e.g. criminal background screening)
Establish FH complaint processes Affirmative marketing Ensure land use, zoning, occupancy codes are FH
compliant FH testing
HUD’s Proposed AFFH Reg. Proposed rule published July 19, 2013
78 Fed. Reg. 139, pp. 43710-43743 HUD’s Overall Goals:
Increase transparency w/ public involvement & link to public investment plans
Improve compliance so grantees know req’ts & standards
Reduce data collection costs Synchronize assessment process & tie to ConPlan
& PHA planning Encourage regional approaches
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HUD’s Proposed AFFH Reg.
HUD’s Fair Housing Goals: Reduce segregation Eliminate racially & ethnically concentrated
areas of poverty Reduce disparities in access to imp’t
community assets & stressors Narrow gaps between protected
classes/address disproportionate housing needs
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Proposed AFFH Definition
“taking proactive steps beyond simply combating discrimination to foster more inclusive communities
and access to community assets for all persons protected by the FHA. More specifically, it means
taking steps to proactively address significant disparities in access to community assets, to
overcome segregated living patterns and support and promote integrated communities, to end racially and
ethnically concentrated areas of poverty, and to foster and maintain compliance with civil rights and
fair housing laws.”
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Changes w/ Proposed AFFH Reg. AI Assessment of Fair Housing (AFH) AFH uses HUD-supplied data AFH submitted to HUD
270 days b/4 year prior to 3 or 5 yr ConPlan HUD has 60 days to notify of non-acceptance
Acceptance ≠ met AFFH req’t Incorporate FH goals into planning
ConPlan, PHA Plan, Annual Action Plan, Capital Fund Plan
Req’d every 5 yrs (every year for PHAs)19
Proposed AFFH Reg: Data to be Provided by HUD
Demographics of community Patterns of integration & segregation Racially & ethnically concentrated areas of
poverty (RCAP/ECAP) Disparities in access to community assets &
stressors schools, jobs, transportation, recreation, social
services, safe streets, health hazard exposure Disproportionate housing needs based on
protected classes Housing cost burdens, overcrowding, substandard
housing 20
Proposed AFFH Reg: AFH Elements
Summary of FH issues & capacity to address Incl. FH enforcement & outreach capacity
Analysis of data HUD provided + can add own from community
Assessments of determinants of FH issues Using HUD-supplied tool
ID of FH priorities & general goals Justify prioritization
Summary of community participation21
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Federal FH Act:Types of Property Covered
The FHA broadly applies to "dwellings,” which includes almost every residential rental unit. Single and Multi-family housing
houses, apartments & condos Group homes Shelters Migrant housing Assisted living housing Long-term transient lodging
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What Acts are Prohibited?
Refusal to sell, rent, negotiate, or “otherwise make unavailable or deny” a dwelling
Discriminate in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities
Statements indicating preference or limitation Coerce, intimidate, threaten, or interfere with a
person’s right to fair housing
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Fair Housing Applies to Zoning
“Otherwise make unavailable” Includes restrictive zoning
As a result, zoning boards, municipalities, and other gov’t entities that take actions in violation of the FHA will be liable
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Legislative Intent of FHA
“The Committee intends that the prohibition against discrimination against those with handicaps apply to zoning decisions and practices. The Act is intended to prohibit the application of special requirements through land-use regulations, restrictive covenants, and conditional or special use permits that have the effect of limiting the ability of such individuals to live in the residence of their choice in the community.”
H. Rep. No. 100-711, at 24 (1988)
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Policies underlying FHA & zoning
AFFH Increase housing choice & opportunities Integration
Olmstead decision Allow people w/ disabilities to live in community settings
Individuality Respect unique needs & circumstances
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What Type of Discrimination is Illegal?
Intentional discrimination/disparate treatment Policies that have discriminatory effect/disparate
impact Incl. zoning laws or decisions HUD issued regulation 2/15/13
Denial of reasonable accommodation for person w/ disability Incl. denials by gov’t officials
Statements indicating preference/limitation
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Disability: Definition
Physical and / or mental impairment which substantially limits 1 or more major life activities, or Record of having such impairment, or Being regarded as having such impairment Includes people associated with or residing with person meeting definition
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Disability: Examples
Mobility impairments Sensory impairments Mental illness HIV positive or AIDS Former drug abuse Other physical / mental impairments
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Reasonable Accommodations
Changes in “rules, policies, practices, or services when … necessary to afford … equal opportunity to use & enjoy dwelling” Can require proof of covered disability Change must be related to disability Can be requested at any time Not “reasonable” if “undue burden” on housing provider or “fundamental alteration” of provision of housing
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RAs & Zoning
FHA mandates that zoning officials “change, waive, or make exceptions in their zoning rules to afford people with disabilities the same opportunity to housing as those who are without disabilities.”
Hovsons Inc. v. Township of Brick,89 F.3d 1096, 1104 (3d Cir. 1996)
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RAs: Examples
Allow nursing home to operate in mixed residential zone Waive minimum side yard req’t Variance to allow facility for people with disabilities in commercial/industrial district Allow 8-person home (vs. 6-person) Exception to dispersion requirement
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Exceptions
Direct Threat. The FHA does not require a tenancy that would be a “direct threat” to the health or safety of other individuals, or result in substantial damage to the property of others, unless a reasonable accommodation could eliminate the threat.
Drug use. The current use of illegal drugs is excluded from the definition of disability.
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Examples of Possible Intentional Discrimination
Denial of building, renovation, special use permit or re-zoning based on objections to residents of the development or home
Based on race, nat’l origin, fam. status, or disability Example: developer denied zoning to build racially diverse
subsidized multifamily housing in white area of town Moratorium on new adult care facilities w/o justification Limitation on geographical proximity, where imposed in
response to community fears & concerns about property values
Treating a group home for people with disabilities different than a “family” home, even when the group home meets the “family” home legal definition.
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Examples ofPossible Intentional Discrimination (cont’d)
Application of fire code to group home for persons with mental illness who had no problems evacuating
Conditioning group home permit on 24-hour supervision and establishment of “community advisory committee”
Requiring certificate of occupancy for group home for people with disabilities only (not for other group homes)
Requiring notice to neighbors of a group home’s existence where not required for other residential units
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Examples of Possible Disparate Impact (Discriminatory Effect)
Requiring group homes include only persons who are mobile and capable of exiting a building and following instructions
Dispersion requirement for group homes Limitation on # of unrelated persons allowed to live
together
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Examples of Interference, Coercion, or Intimidation
Denial of special use permit, where reason for denial proven to be pretext
Weekly citations for noise, parking, zoning, etc., where town had been lax, plus evidence of discriminatory statements
N.C. FAIR HOUSING ACT N.C. Gen. Statutes Ch. 41A
Also NC Real Estate Licensing Act N.C.A.C. Title 21, §58A-1601
Essentially mirrors Federal FHA: Covers all Federal protected classes; Applies to same properties and transactions; Prohibits the same discriminatory acts.
In addition, 2009 amendments added another protected class NOT covered by Fed. FHA
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Affordable Housing as a Protected Class for Land-Use Decisions
§ 41A-4(g) ”It is an unlawful discriminatory housing practice to discriminate in land-use decisions or in the permitting of development based on race, color, religion, sex, national origin, handicapping condition, familial status, or, except as otherwise provided by law, the fact that a development or proposed development contains affordable housing units for families or individuals with incomes below eighty percent (80%) of area median income. It is not a violation of this Chapter if land-use decisions or permitting of development is based on considerations of limiting high concentrations of affordable housing.”
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What It Means
Government bodies involved in land-use planning and regulation cannot refuse approval or otherwise discriminate against proposals because they include affordable housing.
At a minimum, this section covers decisions by zoning boards, planning boards, county commissions and municipal councils.
Probably also applies to municipal utilities, highway and other transportation planning, and soil and water districts.
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What It Means (cont’d.)
Affordable Housing is defined as housing intended for families or individuals with incomes less than 80% of median income in the area. Does not define the size of the area used to
determine median income (but based on HUD definition, which uses MSA).
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Does not state how to determine if housing is “for” such families.
Standard definition of “affordable housing” is 30% of annual income.
What It Means (cont’d.)
What It Means (still cont’d)
Allows land-use planners to limit “high concentrations” of affordable housing. Doesn’t define “high concentrations.” New HUD data supplied for the Fair Housing
Assessments will include numbers on racially concentrated areas of poverty (see slide 20)
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What It Doesn’t Mean
Does not mean affordable housing development must be approved.
Does not mean wealthy and poor neighborhoods must receive identical services, such as water & sewer.
Does not mean new developments must include affordable housing.
Landlords do not have to accept Section 8 vouchers or other housing subsidies.
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What We Don’t Know
Who can bring suit (standing) FHA states “any person injured by a
discriminatory practice” may sue. Standing under the FHA is usually
construed broadly to allow people to bring suit, but does not stretch infinitely.
For purposes of its investigations, NCHRC will construe standing broadly until otherwise instructed by the courts or legislature.
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What We Don’t Know (cont’d.)
How will courts define “area”, “for” poor families, and “high concentrations”?
How will this affect political questions such as annexation and boundary lines?
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4747
North Carolina Act: 1 year from date of last act to file an
NCHRC complaint 1 year from date of last act or Right to Sue
letter to file a lawsuit (No requirement to file w/NCHRC first) Filing a complaint with HUD or NCHRC
stops the running of the time to file a lawsuit under the federal and state Fair Housing Act
Statute of Limitations
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Federal Act: 1 year from date of last act to file a
HUD complaint 2 years from date of last act to file a
lawsuit Filing a complaint with HUD stops the
running of the time to file a lawsuit under the federal and state Fair Housing Act
Statute of Limitations
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Questions?
Fair Housing Project
Legal Aid of NC
1-855-797-FAIR
www.fairhousingnc.org
NC Human Relations Commission
(919) 807-4420
1-866-324-7474 (toll free)www.doa.state.nc.us/hrc
This seminar provides general information. For legal advice, please consult an attorney.